Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 928 of 2001
Present :
Mr. Justice Nadeem Akhtar
Date of hearing : 14.11.2012.
Plaintiff : Shoukat Ali, through Mr. Khilji Bilal Aziz
Advocate.
Defendants 1 & 2 : (1) Karachi Metropolitan Corporation, through its Administrator, and (2) the Additional Director Land (A/E), Karachi Metropolitan Corporation, through, Mr. Qaisar Jameel, Advocate.
J U D G M E N T
NADEEM AKHTAR, J.- This Suit for declaration, injunction and damages has been filed by the plaintiff against the defendants in respect of Plot No. B-12, Gulshan-e-Faisal Cooperative Housing Society Limited, Bath Island, measuring 500 sq. yds., with the construction thereon, hereinafter referred to as “The Suit Property”.
2. The case of the plaintiff is that he is the sole and absolute owner of the suit property by virtue of the sale deed executed and registered in his favour on 13.07.1985. Subsequently, the plaintiff purchased the adjoining Plot No. B-23, which is not the subject matter of this Suit. The suit property was originally leased out by defendant No.1 for a period of 99 years commencing from 15.07.1975 in favour of Messers Gulshan-e-Faisal Cooperative Housing Society Limited, Karachi (the Society), through a registered Indenture of Lease dated 09.06.1976. In the site plan of the suit property attached as Schedule-I to the said registered 99 years’ lease, the measurements of the suit property were shown as 75 ft. X 60 ft. The site plan further showed a 50 feet wide road in front of the suit property, a 33 feet wide road on one side, plaintiff’s other plot No. B-23 on the other side, and plot No. B-13 at the back.
3. It is also the case of the plaintiff that the lay out plan of the entire Society was planned and approved by defendant No.1, and the site plan showing the measurements of the suit property as 75 ft. X 60 ft. was also approved by defendant No.1 when the 99 years lease with the said site plan attached thereto was executed in respect of the suit property by defendant No.1. The plaintiff has stated that the Karachi Building Control Authority approved the plan submitted by the plaintiff for construction of a bungalow on the suit property, and finally the completion plan was issued on 04.07.1988. The plaintiff has claimed that the suit property comprises of only the leased area of 75 ft. X 60 ft., that he is in possession of only the said leased area, and that the entire construction raised by him on the suit property, including the boundary / compound wall, is within the said leased area.
4. The defendant No.1 issued a notice dated 17.01.1988 under the Sindh Public Property (Removal of Encroachment) Act, 1975, to the plaintiff alleging that the plaintiff had constructed the compound wall of the suit property unauthorizedly on the 50 feet wide road belonging to defendant No.1. By this notice, the plaintiff was directed by defendant No.1 to remove the said wall within 24 hours. On the same day, the plaintiff responded through his letter informing the defendants that the compound wall had been raised by him within the leased area / limits of the suit property, and that there was no encroachment by him on the 50 feet wide road. The plaintiff requested the defendants to verify this position from the site plan of the suit property. Thereafter, vide letter dated 10.02.1988, the defendants informed the plaintiff that they had withdrawn their aforementioned notice.
5. On 23.03.2001, the defendants issued another notice to the plaintiff containing the same allegation that the plaintiff had encroached upon the 50 feet wide road belonging to defendant No.1 by raising the compound wall thereon. The plaintiff was once again directed to remove the alleged encroachment. In view of this second notice, the plaintiff filed Constitutional Petition No. D-614 of 2001, wherein an ad interim injunction Order was passed on 29.03.2001 restraining the defendants from demolishing the construction raised by the plaintiff. The plaintiff has alleged that his boundary wall was demolished by the defendants illegally and in violation of the aforementioned injunction Order when the same was in the field. Because of such violation / contempt committed by the defendants, a contempt application was filed by the plaintiff in his petition. The said petition along with the pending applications was dismissed on 12.07.2001 with the observations that a factual controversy was involved in the matter which may be resolved in a Civil Suit.
6. In the above background, this Suit was filed by the plaintiff praying inter alia for a declaration that the construction and the boundary wall on the suit property are within the metes and bounds of the suit property and no part thereof has been constructed on the 50 feet wide road of defendant No.1, for a declaration that the notice dated 22.03.2001 issued by defendant No.1 was malafide, without any lawful authority and was hit by the principle of estoppel, for restraining the defendants from demolishing any part of the suit property and its boundary wall, and for damages to the tune of Rs.5,000,000.00. The defendants filed their written statement wherein they claimed that a 50 feet wide road in front of the suit property has been shown on the northern side in the site plan of the locality in question. The defendants alleged that, in order to cover the shortfall in the area of the suit property, the plaintiff encroached upon the said 50 feet wide road. It has been stated in the written statement that the defendants are interested only in maintaining the width of the said 50 feet wide road, and that in case the area of the suit property was not according to the measurements shown in the site plan, the plaintiff should have approached the Society for acquiring the shortfall area. The defendants prayed for the dismissal of this Suit. The demolition of the boundary wall of the Suit property was not denied by the defendants.
7. Vide dated 23.07.2001, the Official Assignee was appointed by this Court as the Commissioner to take measurement of the suit property, and also to measure the width of the road alongside all the boundary walls and along the length of the road. After conducting the survey with the assistance of M/S Joseph Lobo (Pvt.) Ltd., the Official Assignee submitted his report dated 24.11.2001 along with the Survey Report dated 10.11.2001 of M/S Joseph Lobo (Pvt.) Ltd.
8. On 29.10.2007, following consent issues filed by the parties were adopted by the Court :-
“ 1. Whether the construction of the plaintiff (!) bungalow No. B-12, Gulshan-e-Faisal Cooperative, Housing Society is within leased out (!) to the plaintiff ?
2. Whether plaintiff has encroached upon any portion of KMC alleged (!) 50 feet wide road ?
3. Whether there exit (!) any 50 feet wide road alleged (!) ?
4. Whether the layout plan is correctly prepared. If not what is its effect ?
5. What should the decree be ? ”
9. In support of his case, the plaintiff examined himself and produced a number of documents in respect of the suit property, including the original 99 years registered Indenture of Lease dated 16.06.1976 containing the site plan (Exh.P/5) executed by defendant No.1, the registered Sale Deed dated 13.07.1985 (Exh.P/2) in favour of the plaintiff, notice dated 17.01.1988 (Exh.P/8) issued by defendant No.1, reply dated 17.01.1988 (Exh.P/9) by the plaintiff, letter dated 10.02.1988 (Exh.P/10) by defendant No.1 for withdrawal of its notice dated 17.01.1988, letter dated 04.07.1988 (Exh.P/7) by defendant No.1 confirming that the construction on the suit property was within the leased area of 60 ft. X 75 ft., and further confirming that the notice dated 17.01.1988 was issued under a wrong presumption, orders passed in C.P. No.D-614/2001 (Exh.P/11 & P/12), and the report dated 24.11.2001 (Exh.P/13) of the Official Assignee / Commissioner along with the Survey Report dated 10.11.2001 (Exh.P/14) of M/S Joseph Lobo (Pvt.) Ltd. The plaintiff was cross examined by the defendants’ counsel. The defendants examined their Deputy District Officer, Revenue Enforcement Department, as their sole witness, who was cross examined by the plaintiff’s counsel. No document was produced by this witness on behalf of the defendants.
10. After perusing the pleadings of the parties, examining the evidence on record and hearing the learned counsel, my findings on the issues involved in this Suit are as under :
ISSUE No.1 :
11. The 99 years registered Indenture of Lease dated 16.06.1976 (Exh.P/5) executed by defendant No.1 comprises of four (04) pages. The site plan of the suit property is shown on page 3 of this Lease, wherein the measurement / area of the suit property is shown as 75 ft. X 60 ft. Each page of the Lease bears the seal of the lessor / defendant No.1. In addition to the seal of defendant No.1, only page 3 of the Lease showing the site plan and the above measurement of the suit property, bears the signatures and stamps of the three most relevant officers of defendant No.1 ; namely, the Land Surveyor, the Land Manager, and the Head Draftsman, Land Department. Having been shown on page 3 of the Lease, there is no doubt that the site plan is an integral part of the Lease. It is important to note here that the Lease and the site plan are admitted documents.
12. The measurement of the suit property was taken by an expert and reputable surveyor ; namely, M/S Joseph Lobo (Pvt.) Ltd., whose Survey Report dated 10.11.2001 (Exh.P/14) was submitted by the Official Assignee / Commissioner in pursuance of the Order passed by this Court with the consent of the parties. In his Survey Report (Exh.P/14), the surveyor reported that the dimensions of the suit property were “75 ft. (length / frontage)” and “59.08 ft. (width / depth)”. He further reported that the depth of the suit property was marginally less than it should be. No objections to this Survey Report (Exh.P/14) were filed by the defendants. The most important document, which was produced by the plaintiff in his evidence, is the letter dated 04.07.1988 (Exh.P/7) addressed to the plaintiff by the Deputy Director Land of defendant No.1, confirming that the entire construction on the suit property was within the leased area of 75 ft. X 60 ft. This letter (Exh.P/7) is also an admitted document, as it was not denied by the defendants.
13. In view of the admitted registered 99 years lease of the suit property (Exh.P/5) with the site plan therein showing measurement of the suit property as 75 ft. X 60 ft., and also in view of the admitted letter dated 04.07.1988 (Exh.P/7) by defendant No.1 confirming that the construction on the suit property was within the leased area of 75 ft. X 60 ft., the burden to prove this issue was never on the plaintiff nor was he required to prove it. Article 113 of the Qanun-e-Shahadat Order, 1984, is fully applicable to this issue, as the admitted facts need not be proved. Even otherwise, no suggestion was made nor was any question put to the plaintiff in his cross examination by the defendants that construction had been raised on the suit property beyond the leased area of 75 ft. X 60 ft. On the other hand, the witness of the defendants had admitted in his cross examination that, at the time of inspection of the suit property, the construction was found to be on the area of 75 ft. X 60 ft. This issue is, therefore, answered in the affirmative, and it is held that the construction on the suit property is within the leased area of 75 ft. X 60 ft.
ISSUE No.2 :
14. The burden to prove this issue, that is, whether the plaintiff has encroached upon any portion of the 50 feet wide road of defendant No.1, was on the defendants. Here I would once again refer to the letter dated 04.07.1988 (Exh.P/7) addressed to the plaintiff by the Deputy Director Land of defendant No.1. Because of its importance and relevance for the purposes of this issue, Exh.P/7 is reproduced below :-
“ The notice issued under Sind Public Property (Removal of Encroachment) Act, 1975, on the presumption that the building so constructed has disturbed the building line and abutting on the road alignment, has been withdrawn vide this office letter No.DDL/MISC./560/88 dated 10.02.1988.
The Site Inspection revealed that the construction of the Building on the above said plot has been carried out within the leased area admeasuring 500 Square Yards viz. (60’ X 75’). ”
Exh.P/7, which is an admitted document, clearly shows that it was confirmed by defendant No.1 itself after proper site inspection that the entire construction on the suit property was carried out by the plaintiff within the leased area of 75 ft. X 60 ft., and that the notice (Exh.P/8) for removal of encroachment was issued by defendant No.1 to the plaintiff under a wrong presumption that the plaintiff had encroached upon the road. This confirmation and admission by defendant No.1 through Exh.P/7 alone is sufficient to prove that there was no encroachment on the road by the plaintiff. After issuing Exh.P/7 in the above terms, the defendants were estopped from taking all subsequent actions against the plaintiff, alleging encroachment by him.
15. In his Survey Report (Exh.P/14), the surveyor mentioned the dimensions of the suit property as “75 ft. (length / frontage)” and “59.08 ft. (width / depth)”, which match with the dimensions shown in the admitted site plan (Exh.P/5). There was no indication at all by the surveyor in his Survey Report (Exh.P/14) that the plaintiff had encroached upon the road on the northern side of the suit property by raising construction thereon. No objections to this Survey Report (Exh.P/14) were filed by the defendants. While cross examining the plaintiff, only a vague and general suggestion was made on behalf of the defendants that the plaintiff had raised a wall on the road, which was denied by the plaintiff. The defendants did not confront the plaintiff about the exact or even the approximate area and/or about the date of the alleged encroachment on the road. In his cross examination, the witness of the defendants admitted that he never visited the site, that he was not present at the time of inspection, and that he had no knowledge that the width of the 50 feet wide road varies from place to place.
16. During the course of hearing, I enquired from the learned counsel for the defendants that, if the plaintiff has encroached upon the road in question as alleged by the defendants, then whether or not the frontage / boundary wall of the suit property is projecting towards the road and whether it is out of alignment with the boundary walls of the other houses or not. In reply to this, the learned counsel for the defendants conceded that the boundary walls / frontage of all the houses constructed on the road in question, including that of the suit property, are in alignment, and that there is no projection of the suit property on the road.
17. In view of the above discussion on this issue, the admitted position which has emerged is that the notice (Exh.P/8) alleging encroachment was not only withdrawn by defendant No.1, but it was categorically confirmed by defendant No.1 after proper site inspection that the notice (Exh.P/8) for removal of encroachment was issued by defendant No.1 to the plaintiff under a wrong presumption that the plaintiff had encroached upon the road. The defendants have also admitted that there is no projection of the suit property on the road, and that the boundary wall / frontage of the suit property is in line with the other houses on the road. The plaintiff was not confronted by the defendants about the area or the date of the alleged encroachment. The overall effect of the above is that the defendants are estopped from alleging the encroachment by the plaintiff, and/or from taking any action against him. The defendants have failed to discharge the burden to prove that there was any encroachment on the road by the plaintiff. Upon failure of the defendants in discharging the burden to prove this issue in their favour, the burden never shifted on the plaintiff. This issue is, therefore, answered in the negative by holding that the plaintiff did not encroach upon the road in question.
ISSUES No.3 and 4 :
18. These two issues ; namely, whether there exists any 50 feet wide road, and whether the layout plan is correctly prepared, if not what is its effect, are interlinked. Therefore, these issues are being dealt with together. In the Survey Report (Exh.P/14), it is mentioned that two parallel roads, each 50 feet wide, are shown in the layout plan of the Society. It is also mentioned in Exh.P/14 that the length of both the said roads was measured by the Surveyor, that revealed that there was an approximate difference of 18’-09” in the length, which according to the Surveyor, indicated “a corresponding decrease in the width of either of the two parallel 50’ wide roads westwards of 9th Street ”. Exh.P/14 does not say that, out of the two parallel roads, the decrease in the width was found in respect of the road which is in front of the suit property. Exh.P/14 is completely silent as to what was the actual and exact width of the road which is in front of the suit property. Exh.P/14 also does not say anything as to whether the layout plan prepared by the Society is correct or not.
19. The Survey Report (Exh.P/14), which was produced by the plaintiff and no objections were filed thereto by the defendants, does not show or prove that the plaintiff is responsible in any manner, in case the width of the road in front of the suit property has been reduced, as alleged by the defendants. In my humble opinion, these two issues do not affect the case of the plaintiff ; firstly, the entire construction on the suit property was admittedly carried out on the leased area ; secondly, the defendants have admitted that the plaintiff did not encroach upon the road and the notice for removal of the alleged encroachment was issued by defendant No.1 under a wrong presumption ; and lastly, the dispute, if any, regarding reduction in the width of the road is a matter between defendant No.1 and the Society. The plaintiff, who is the lawful owner and the successor-in-interest of the original lessee of the 99 years lease of the suit property, cannot be held responsible or liable in case the width of the road is not 50 feet, or if there is any discrepancy in the layout plan prepared by the Society and approved by defendant No.1. Admittedly, defendant No.1 has not taken any action against the Society and/or against the other owners / lessees. As such, the action by defendant No.1 only against the plaintiff was arbitrary and discriminatory. These two issues are answered in the above terms.
ISSUE No. 5 :
This issue, that is, what should the decree be, is answered in the following terms :
20. In addition to the prayers for declaration and injunction, the plaintiff has claimed damages of Rs. 5,000,000.00 against the defendants. Although no issue regarding the claim of damages was framed in this Suit, but the parties were fully aware about the subject matter of the controversy, the pleadings and the evidence which was to be led by each side. In such circumstances, non-framing of specific issue regarding the plaintiff’s claim for damages, is inconsequential. This view expressed by me is fortified by the following three recent authorities of the Hon’ble Supreme Court :
In the case of Malik Safdar Ali Khan and another V/S Public-At-Large and others, 2004 SCMR 1219, it was held by the Hon’ble Supreme Court that the parties were well aware of the question involved in the case and the evidence adduced by the parties was exclusively geared towards such issue, therefore, no prejudice to any of the parties had been caused by non-framing of specific issue on the point involved.
In the case of Eda Khan V/S Mst. Ghanwar and others, 2004 SCMR 1524, the Hon’ble Supreme Court was pleased to hold that it is a settled principle of law that if once parties were alive to contentions raised and when once evidence is adduced in support of such contentions, the framing or non-framing of issue loses significance
In the case of Fazal Muhammad Bhatti and another V/S Mst. Saeeda Akhtar and two others, 1993 SCMR 2018, it was held by the Hon’ble Supreme Court in paragraph 4 as under :-
“ 4. The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issue in such circumstances is in consequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been the established law in the sub-continent as would appear from Sayed Muhammad v. Fatteh Muhammad (22 Indian Appeals 4)”.
21. In view of the above referred authorities of the Hon’ble Supreme Court, the claim of the plaintiff for damages can be considered. The basis of the claim for damages is that the action of demolition of the boundary wall of the suit property taken by the defendants was illegal as the plaintiff had not encroached upon the road, and also that the boundary wall was demolished by the defendants when the injunction order passed in the plaintiff’s Constitutional Petition No. D-614/2001 was operating. The plaintiff had specifically alleged in his examination-in-chief that, due to this illegal action of the defendants, he had to reconstruct the entire 70 feet long and 7 feet high boundary wall by incurring a substantial cost of Rs.1,000,000.00. The fact of demolition and reconstruction of the boundary wall is also mentioned in the plaint. The plaintiff has further alleged in the plaint and in his examination-in-chief that the illegal actions taken by the defendants caused not only monetary loss to him, but also caused mental torture and agony to him, and his reputation was lowered in the eyes of close relatives, friends and residents of the locality. Despite the above specific allegations and the claim for damages by the plaintiff, he was not confronted in his cross examination by the defendants by suggesting or asserting that the losses alleged by him were not caused to him because of the acts of the defendants, or that he was not entitled to damages / compensation.
22. The first notice for removal of the alleged encroachment was issued to the plaintiff by the defendants on 17.01.1988 vide Exh.P/8, which means that the plaintiff has remained under undue pressure and threat for the last about 25 years. In view of the second notice, the plaintiff initiated litigation against the defendants in the year 2001 to protect the suit property and to safeguard his rights therein. The plaintiff is pursuing the litigation for the last more than 11 years. He must have incurred substantial expenses towards professional fee of his counsel and other allied expenses. Meanwhile, the boundary wall was admittedly demolished by the defendants in the year 2003 despite admitting vide Exh.P/7 dated 04.07.1988 that there was no encroachment by the plaintiff, and that the notice for removal of the alleged encroachment was issued under a wrong presumption. Admittedly, the boundary wall had to be reconstructed by the plaintiff at his own cost. All the above factors are sufficient to establish that the plaintiff is entitled to damages. The contents of the plaint and the evidence produced by the plaintiff are sufficient to show not only that the plaintiff has successfully discharged the burden to prove his claim for damages, but also that his claim has remained unchallenged and un-rebutted.
23. In view of the findings on issues No.1 and 2, it is hereby declared that the construction of the suit property, that is, plaintiff’s bungalow No. B-12, Gulshan-e-Faisal Cooperative Housing Society Limited, Bath Island, measuring 500 sq. yds., is within the leased area of 75 feet X 60 feet, and that the road in front of the suit property has not been encroached upon by any part of the suit property or by its boundary wall. It is further declared that the impugned notice dated 22.03.2001 issued by the defendants was malafide, discriminatory, of no legal effect and was hit by the law of estoppel. The defendants, their employees, functionaries and/or any other person(s) acting directly or indirectly through them, are restrained from demolishing or disturbing any part of the suit property, including its boundary wall, and/or from taking any type of coercive action in respect of the suit property. The defendants are directed to pay a sum of Rs.1,000,000.00 (Rupees one million only) to the plaintiff as damages within thirty (30) days.
The Suit is decreed with costs in the above terms.
J U D G E
*Suit No. B-04 of 2010 Banking /Judgment Single/Court Work/Desktop/ARK*